Thomas v. State

130 Conn.App. 533

24 A.3d 12

Troy S. THOMAS

v.STATE of Connecticut.

No. 31313.

Appellate Court of Connecticut.

Argued April 18, 2011.Decided Aug. 2, 2011.

John W. Watson, for the appellant (petitioner).Harry Weller, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Terri L. Sonnemann, assistant state's attorney, for the appellee (respondent).LAVINE, BEAR and WEST, Js.LAVINE, J.

The petitioner, Troy S. Thomas, appeals from the judgment of the trial court denying his petition for a new trial.¹ On appeal, the petitioner claims that the trial court improperly (1) granted the motion to strike filed by the respondent, the state of Connecticut, and (2) denied his petition for a new trial. We affirm the judgment of the trial court.

The following procedural history and facts provide an overview of the events that give rise to this appeal. On July 23, 2003, the petitioner was arrested in the vicinity of 57 Belden Street in Hartford. Evidence was presented to a jury, which, on September 22, 2004, found the petitioner guilty of “possession of narcotics with the intent to sell in violation of General Statutes § 21a–278 (b), possession of a controlled substance with the intent to sell within 1500 feet of a school in violation of General Statutes § 21a–278a (b), possession of narcotics in violation of General Statutes § 21a–279 (a) and possession of narcotics within 1500 feet of a school in violation of General Statutes § 21a–279 (d).” State v. Thomas, 96 Conn.App. 578, 579, 901 A.2d 76, cert. denied, 280 Conn. 912, 908 A.2d 542 (2006). The petitioner's conviction was upheld on appeal to this court. ² Id., at 589, 901 A.2d 76.

During the course of the trial on the July, 2003 charges, held in September, 2004, two Hartford police detectives, Alfred Henderson and Nathaniel Ortiz (detectives), testified about the petitioner's prior uncharged misconduct concerning his involvement with illegal drugs to prove knowledge and intent. ³ Id., at 581–82, 901 A.2d 76. In October, 2004, after the jury found the petitioner guilty, but before he was sentenced, the petitioner's trial counsel, Jeremy N. Weingast, learned that Ortiz was under investigation for falsifying information in search warrant affidavits. Weingast filed a motion for a new trial, which the court, Keller, J., denied, indicating that General Statutes § 52–270 was the appropriate means by which to seek a new trial. Judge Keller sentenced the petitioner to eleven years imprisonment. Id., at 579, 901 A.2d 76.

In October, 2003, the petitioner again was arrested and charged with various drug offenses. Jury selection on those charges commenced in April, 2005, but the panel was never sworn in. The state filed a motion to introduce uncharged misconduct evidence to prove the petitioner's intent to possess and sell drugs.⁴ The petitioner filed a motion to suppress, which Judge Keller denied. The petitioner elected to enter a plea of nolo contendere on April 26, 2005, in order to appeal from the denial of his motion to suppress. ⁵ The court, D'Addabbo, J., sentenced the petitioner to a term of imprisonment concurrent with the sentence he was serving for his conviction of the crimes he committed in July, 2003.

With regard to the detectives who testified as to the petitioner's prior uncharged misconduct in the September, 2004 trial, police department investigations revealed that they were involved in criminal activity themselves. Ortiz had falsified information in a search warrant affidavit and was indicted before the petitioner was sentenced for the July, 2003 crimes. On April 8, 2008, Ortiz pleaded guilty under the Alford doctrine ⁶ to a charge of making a false statement in the second degree. In January, 2006, Henderson also was arrested and charged in a ten count information with larceny in the first degree, forgery in the second degree, tampering fabricating physical evidence and tampering with a witness. On October 26, 2007, he entered a written plea of nolo contendere to one of court of forgery in the second degree and was sentenced on February 4, 2008.

In 2007, the petitioner filed a pro se petition for a new trial. Appointed counsel subsequently filed an amended petition on January 22, 2009. In count one, the petitioner sought a new trial pursuant to his conviction after a jury trial on the July, 2003 crimes, and, in count two, a new trial pursuant to his having entered a plea of nolo contendere to one of the October, 2003 crimes with which he had been charged. The respondent filed a motion to strike count two of the petition. The court, Hon. John F. Mulcahy, Jr., judge trial referee, granted the motion to strike. Thereafter, the parties tried the first count of the petition to Judge Mulcahy, who denied the petition for a new trial in a lengthy and thorough memorandum of decision. See Thomas v. State, 52 Conn.Supp. 69, ––– A.3d –––– (2009). The court granted the petitioner's request for certification to appeal filed pursuant to General Statutes § 54–95(a).⁷ This appeal followed. Additional facts will be set forth as needed.

I

The petitioner first claims that the court improperly (1) granted the respondent's motion to strike count two of his petition for a new trial and (2) denied his motion to reconsider and replead. We disagree.

A

The resolution of the petitioner's claim that the court improperly granted the motion to strike count two of his petition turns largely on the distinction between a trial and the presentation of evidence. ⁸ With regard to the petitioner's conviction of one of the crimes with which he had been charged in the October, 2003 incident, the petitioner pleaded nolo contendere; no evidence was presented regarding those crimes. Consequently, there was no evidentiary record available for the court to compare with what the petitioner claims is newly discovered evidence regarding the criminal conduct of the detectives who testified at the September, 2004 trial. See Shabazz v. State, 259 Conn. 811, 822, 792 A.2d 797 (2002). The petitioner's claim therefore fails.

Count two of the petitioner's amended petition alleges, in relevant part, that trial on the October, 2003 charges commenced on April 25, 2005. After the petitioner's motion to suppress was denied, he “entered a plea of [n]olo [c]ontendere so that he could take an appeal on the suppression issue.” He also alleged that during that trial, Ortiz was under investigation for fabricating evidence in an unrelated case involving drug charges. Ortiz was arrested and pleaded guilty to fabricating evidence in May, 2008.

In January, 2006, the Hartford police department arrested Henderson for criminal activity dating to 2000, in which he took money intended to compensate confidential informants. Henderson pleaded guilty to criminal charges in February, 2008. The petitioner also alleged that at the time the detectives testified in September, 2004, he was aware that the testimony given by Ortiz and Henderson was false, but that he was unable to impeach their testimony because he did not know of their criminal wrongdoing. The petitioner claimed that, if the jury had not found him guilty of the July, 2003 charges, he would have been in a superior position to bargain and decide whether to go to trial on the October, 2003 charges.⁹ The petitioner alleged that the jury's verdict was unjust, but as a result of the guilty verdict, he entered a plea on the October, 2003 charges. He further alleged that he discovered the detectives' criminal activities subsequent to the jury's verdict and that he could not have discovered the criminal activities sooner.

The petitioner alleged that there was evidence that Henderson was falsifying information for a substantial period of time both prior to and subsequent to the petitioner's convictions. He alleged that he would not have pleaded nolo contendere to one of the October, 2003 charges but for his conviction on the July, 2003 charges that were the result of tainted testimony given by Ortiz and Henderson. But see footnote 9 of this opinion. On the basis of newly discovered evidence regarding the detectives' criminal conduct, the petitioner sought a new trial.

The respondent filed a motion to strike count two of the amended petition, claiming that the allegations it contained were legally insufficient and failed to state a claim on which relief could be granted. The respondent also claimed that the prayer for relief as to count two is legally insufficient, and finally, that the petition improperly joins two causes of action that cannot properly be united.¹⁰ The petitioner objected to the motion to strike.

The court granted the respondent's motion to strike count two of the petition in a memorandum of decision issued March 17, 2009. The court found that the petition failed to allege any newly discovered evidence pertaining to the petitioner's plea conviction, as required by § 52–270. The allegations of count two refer to the police department investigations, arrests and convictions of Ortiz and Henderson, which pertain to the petitioner's jury conviction on the July, 2003 charges. The petition does not allege that either Ortiz or Henderson had a role in the investigation that led to the petitioner's arrest in October, 2003, or testified in relation to the charge brought in connection with that incident. Moreover, count two does not allege that Ortiz or Henderson would have testified at trial had there been a trial on those charges. The court concluded that the newly discovered evidence concerning the detectives' criminal conduct could not have been used to impeach their testimony on the October, 2003 charges. The petition does not allege that either Ortiz or Henderson was in any way involved in the October, 2003 charges or the petitioner's plea of nolo contendere.

The court found that the petitioner sought to create a nexus between the jury trial conviction and the plea conviction on the basis of the...